In Margaret Mitchell’s novel Gone with the Wind, the novel’s protagonist, Scarlett O’Hara wonders to herself if her home on a plantation called “Tara” symbolising the pre-civil war South is still standing, or if it was “also gone with the wind”.

I must say that I had similar thoughts when I read the opinion of Advocate general Cruz Villalón in the case Scarlet vs SABAM.
I bet you want to know why?

Good, before I share them with you, however, I will present you with the

Background

In 2004 the Société belge des auteurs compositeurs et éditeurs (SABAM) applied for interim relief against the Belgian ISP Scarlet on the ground that Scarlet’s users had shared musical works contained in SABAM’s repertoire without SABAM’s permission, thereby infringing the copyright in the works.
In 2007 the Brussels Tribunal of First Instance ruled that Scarlet was under an obligation both to block the accounts of its users and to implement a mechanism to filter out infringing content. According to this decision, Scarlet was obliged to make it impossible for its customers to send or receive a P2P file that would include works from SABAM, and faced fines of €2,500 a day if it failed to comply within six months.

In 2008 the Tribunal of First Instance in Brussels decided, on an application for “absolute impossibility of compliance” filed by Scarlet against its decision of 2007, that the Tribunal had been badly informed when it decided that appropriate filtering technologies were available on the market. Scarlet had argued that it was technically impossible or unreasonably expensive to block the P2P traffic and that the solution developed by Audible Magic, a filter mechanism, did not work. Additional technical options were considered and implemented but none of them led to a satisfactory solution.
The Tribunal declared itself not competent to deal with the question as to whether filtering can be made compulsory for ISP and referred the case to the Brussels Court of Appeals.

The Court of Appeals sought a ruling from the Court of Justice of the European Union on whether EU law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an ISP to install a system for filtering and blocking electronic communications.

Advocate General’s opinion

Advocate General Cruz Villalón considers that a court order to install a system to

1. filter all data communications passing via Scarlet’s network, in order to detect data which involve a copyright infringement and
2. block communications which actually involve copyright infringement, either at the point at which they are requested or at the point at which they are sent

constitutes a general preventive obligation that would apply in abstracto without determining whether there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

This obligation, says the Advocate General, would also delegate the legal and economic responsibility for combating illegal downloading of pirated works to the ISP.

In the light of the above, Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. Equally important, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

To say it with Cruz Villalón’s own words: “As far as we can tell, no system of filtering and blocking seems to guarantee, in a manner that is consistent with the requirements of Articles 11 and 52, paragraph 1, of the Charter, that it will block only content specifically identifiable as illicit”.

Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order that an ISP installs such a filtering system.

Consequences

As you might know, the Court of the European Union follows Advocate General’s opinion in about 80 percent of its decisions.
This means there is more than just a fair chance that the Court rules against the requested filtering system.

In fact it is not a simple ruling that we need.
We need the Court to sweep the adversaries of fundamental human rights away and make them “gone with the wind”!

Did you like this article? If yes, do not forget to share your thoughts with me!

It should be noted that the AG did in fact recognise that such fundamental rights can be limited in accordance with the law. Where such limitations are prescribed by national law which was accessible, clear and predictable. Further, the referral was for “all communications” passing through the network. It is arguable (a)any case dealing with specific and targeted monitoring may succeed on the basis the ECJ decision may be interpreted to deal with “all communications” monitoring and (b) it seems the AG is prescribed legislation on the national level that details how such monitoring would be “clear, accessible and predictable”.

Emil,
It seems to me that the opinion of the AG won’t be as far reaching as many hope. While the ECJ may go further on the basis of the opinion, the opinion itself must be seen for what it is- recognition of rights, but also the limitations that may be placed on those rights.

While the monitoring and filtering in question, in the opinion of the AG, is a restriction on the right to privacy of communications, the right to personal data and the right to information, the AG did recognise these rights could be limited in accordance with the law, provided that law was “accessible, clear and predictable”.

It seems to me a number of issues arise from this- in the first instance, the monitoring/ filtering system proposed was to monitor all communications across the network. It may be arguable in the future that any ECJ decision should be limited to such systems, e.g. that monitor all communications. In turn, should a similar system come before a national member court for scrutiny but is more targeted in its application and doesn’t monitor or filter all communications then it seems to me that a court could find that such a system was proportionate and valid. In turn, the ECJ judgment could be distinguished on the basis it dealt with all communications filtering. Given the penchant for courts like the Irish Supreme Court and the UK higher courts to interpret ECJ judgments for their own purposes this isn’t beyond the imagination. But this clearly will depend on the scope of the ECJ judgment when delivered.

Secondly, whatever the interpretation of the ultimate judgment of the ECJ the fact that the AG states that such charter rights can be limited in law and then goes on to state that such laws should be accessible, clear and predictable seems to me that he is advocating legislating in this area. The outcome of any legislative process for monitoring and filtering would either be a) completely in favour of the intellectual property holder, b) completely in favour of the subscriber’s human rights or c) a balance between the two with strong regulatory controls of how such a system may be deployed and when. I won’t hold my breath for (c)!

Thirdly, while the AG advised the ECJ to rule that no national member court can order an ISP to impose such a system the situation re private settlements/agreements between the ISP and the IP holder is a different matter. In Ireland, such a monitoring and filtering system is in place- by private agreement between the largest ISP “Eircom” and EMI records. There is no public control whatsoever- Eircom is the final arbiter and any appeals by subscribers are to be to Eircom. Given that the settlement was not court ordered but rather by private agreement it remains to be seen what impact the judgment will have on such agreements. It is arguable that companies like Eircom can now tell the rights holder to get lost but this is not a given. And more to the point, such agreements will remain outside public regulatory controls even after the judgment of the ECJ. In the UK, the Digital Economy Act 2010 succeeded upon judicial review and it has the exact system in place re monitoring, filtering and disconnection that exists between Eircom and EMI.

Last but not least- remains the question- if a court cannot order an ISP to undertake such monitoring and filtering on an ad-hoc basis- will the AG opinion and the ultimate ECJ lead to calls for legislation in this area? If so- will it be balanced with procedural and due process rights for the consumer?- again, I won’t hold my breath!

Getting the balance right will be an uphill struggle for subscribers/customers.
BR,
K

Hi Kevin and thanks once again for your in-depth comment on my blog post and Cruz Villalon’s opinion as well.

While I agree with your observation that even fundamental rights can be subject to limitation, there is to say that such limitations must be bound on conditions, including the requirement of proportionality. And that principle of proportionality is, in my view, the recurrent theme throughout AG’s opinion, because it is the criterion for a balance between copyright holders’ and Internet subscribers’ rights.

The principle of proportionality has by the same token developed to a powerful weapon in recent judicial struggles regarding overreaching interferences with fundamental human rights. Especially German courts are known for their preference to deploy it. A German court would have very likely dismissed an ex-ante filtering, had it been requested to order it.

I was surprised to learn about the agreement between Eircom and EMI, which from my perspective is in a conflict with fundamental rights. Does this mean that Ireland (and possibly the UK) do not recognise the horizontal effect of fundamental human rights?
Such an agreement would not survive under the laws of Germany and/or Austria.

In the end, however, I believe that the time is ripe for the ECJ to rule not only in the particular case, but to address the root problems leading to such filtering requests. I personally expect a ruling that either provides for a clear balance between the rights in question or causes a legislative process to eventually strengthen consumers’ rights.